Workers' Compensation Law Archives

On behalf of O'Malley Tunstall PLLC posted in Auto Accident Law on Wednesday, December 4, 2013.

Injured while driving for work? Should you report your injury as a workers' compensation injury or simply allow the case to be handled as a personal injury? Often its tricky to know whether to report your automobile accident case as a workers' compensation case as many people are concerned about their employer discriminating against them for getting injured while working.

On behalf of O'Malley Tunstall PLLC posted in Civil Trial on Monday, November 4, 2013.

In North Carolina an injured worker is required to report an injury at work to the North Carolina Industrial Commission within thirty days (30) of your injury and no greater than two (2) years of the date of your injury. N.C. Gen.Stat. § 97-22. Injuries are reported on a North Carolina Industrial Commission Form 18. The North Carolina Industrial Commission (NCIC) is the state agency that handles all workers' compensation claims, hearings and appeals. To report your claim, report your claim with a Form 18, informing the Industrial Commission and your employer of the nature of your injury, how the injury occurred and when the injury occurred. Why you should file a NCIC form 18 with Susan O'Malley

On behalf of O'Malley Tunstall PLLC posted in Civil Trial on Sunday, October 13, 2013.

If you have been injured on the job while working in North Carolina you may need a lawyer to help with your claim for lost benefits and medical expenses. Our workers' compensation lawyers have handled numerous cases where employees were injured at work and have taken them to every level of appeal through the Industrial Commission and all the way to the North Carolina Supreme Court. Ask SuperLawyers: Do I need an Attorney for Workers' Compensation in North Carolina Please remember you must not rely upon your company to report your injury to the North Carolina Industrial Commission. You have a duty to complete a Form 18 yourself (Employees notice of Injury to the North Carolina Industrial Commission). If you have any questions about whether you should compete a Form 18 or how to obtain one from the North Carolina Industrial Commission please give us a call. Our attorneys are involved in assisting injured workers with their rights after serious head injuries, herniated discs, neck injuries, back injuries, broken bones and injuries resulting in serious surgeries. Youtube: Joe Tunstall discusses the need for a work comp attorney in NC If you are a worker who was injured in an accident in your workplace, you may be entitled to receive Workers' Compensation benefits. Please report your on the job injury swiftly and to the correct person within your company. Often workers' compensation claims become complicated simply because of poor reporting of the injury itself. If you were involved in a car crash while working you may be entitled to both workers' compensation and personal injury recoveries. In order to recover for both, often an attorney may assist by negotiating the workers' compensation liens or having a hearing in front of a resident superior court judge pursuant to statute to have the workers' compensation lien reduced or extinguished. If you were seriously hurt on the job by the negligence of another you may want to discuss your claims immediately. Compensable workplace injuries include most back or hernia injuries, regardless of the cause, other injuries such as broken bones or injuries to the joints caused by accident and occupational diseases such as black lung, brown lung and other diseases peculiar to a certain industry. Your rights after a workplace injury are narrowly defined by the General Statutes; however, a large body of case law has developed explaining these statutes. At O'Malley Tunstall we speak with injured workers quite often that may not need an attorney to resolve their issues. If we can assist you, we will not hesitate to put you in touch with the correct person at the North Carolina Industrial Commission. Attorney for Workers' Compensation in North Carolina The North Carolina Department of Labor promotes the health, safety and general welfare of over 4 million workers at over 238,000 businesses in this state. Whether you suffer from physical, emotional, mental disabilities or occupational-related disease, your employer provided insurance should give financial support. The laws require that your employer, or your employer's insurance company, compensate you, or your family, for injuries or death that occur during the performance of your job. Under the Workers' Compensation program, you may be entitled to benefits that include:

On behalf of O'Malley Tunstall PLLC posted in Auto Accident Law on Wednesday, September 25, 2013.

Why do you need a trial lawyer for your serious injury case? On September 13, 2013 I was invited to try a mock personal injury trial to a room of approximately 100 personal injury lawyers from all over North Carolina at the North Carolina Advocates for Justice office in Raleigh. During the trial attorneys from all stages of their practice, young and experienced alike, came forward to discuss how to handle issues in their cases. The experience was very uplifting and emotional for me as attorneys whom I have idolized, one I have known and admired since long before I became a lawyer, approached me to ask advice about how to protect their clients. Nothing builds your ego like a college asking your advice. Nothing destroys your ego like not having a good answer for that attorney. This fraternity of attorneys who try their client's cases to juries and invest emotionally and financially in their clients is a rare group. This same group of attorneys shares their collective knowledge on the premise that in helping a college to assist his/her client they raise the tide for all injured persons throughout north Carolina. Why you should hire a trial lawyer. Why hire a "trial" lawyer to assist in your claim? We have earned the title by winning and quite frankly loosing cases on behalf of our injured clients and have learned the true value of cases throughout North Carolina. Often in loosing a case for a deserving client, I have learned how to assist the next client, give better advice about settlement of cases and put my next client in a better position to recover for their injuries. Post settlement the medical bills, liens and costs must be accurately accounted for and properly negotiated to give our clients the best result. Whether you have a social security disability (SSI) claim, workers' compensation injury or a serious injury from an automobile collision - think about hiring a trial lawyer and putting that experience to work for you! Joe Tunstall

On behalf of O'Malley Tunstall PLLC posted in Auto Accident Law on Monday, September 2, 2013.

Social Media after a Car Accident or Personal Injury?? Our clients rarely ask whether they should post to their social media (Facebook, twitter, Instagram, etc) after a car accident or injury case -- they just do. Our society is obsessed with instantly sharing what we are doing, what is happening to us and how we are reacting to our own lives. In the past year, our attorneys have seen a significant increase in requests in discovery (written requests called interrogatories, request for the production of documents and verbal requests at depositions) for logon information for our clients Social Media and requests that they produce the history of their account. Why would the insurance defense attorney (attorney hired by the defendant's insurance company to defend them) care if I have 500 friends on Facebook or 1,000 Twitter followers? They don't. What they are counting on is that many of us share a lot about our lives, but rarely do we share the really ugly parts of our own pain and the shame of having pain and problems following injuries from a collision or injury. Often the best advice is what my grandmother told me many times -- don't put anything in writing you don't want to explain to your grandmother. That is especially true of pictures. Joe Tunstall, why use a trial lawyer After a car accident our clients may post a picture of their vehicle, but rarely do they feel compelled to place a picture of themselves with no shower, hair messy from lack of sleep due to pain, stressed and frustrated for all their friends, co-workers and family to see. Instead they may post a picture of their next GOOD hair day. Although there is nothing WRONG at all with wanting to show your good day, your best days, to family and friends -- the insurance company lawyers know that if a jury sees your smiling face at a birthday party two weeks after the car crash, despite the fact you were in pain when you went, left early after taking a pain pill and didn't sleep that night -- the picture of your smiling face is enough to expose to the jury that you are exaggerating. When you have to explain all the good looking pictures, the only ones you would want to post, even when your in pain and having a tough time, it erodes the juries confidence in your complaints of pain. In Virginia an attorney who was past President of the Virginia Trial Lawyers Association was sanctioned for advising a client to remove damaging photos from his Facebook page after receiving a request from the insurance defense attorney to produce the same. article. An attorney cannot assist a client in removing or erasing discoverable material. A client must have the good sense not to post pictures of themselves they would not want to discuss with a judge, jury or their own grandmother. They must also understand that if they tell a jury about all the pain they had for six months in 2011 and the only pictures are of them smiling with their children at the park (good days) and not of them on the couch afterwards sleeping from the pain their credibility will be attacked. If you have questions regarding this post visit us at our own social media where we still only post the good days. @ncpilawyer on twitter and O'Malley Tunstall Facebook on Facebook. Raleigh office of O'Malley Tunstall, PLLC

On behalf of O'Malley Tunstall PLLC posted in Civil Trial on Wednesday, June 5, 2013.

When a worker gets hurt in an injury by accident arising out of and in the course of employment, that injury by accident is compensable. N.C.G.S. § 97-2(6). Put simply, if you get hurt at work you can get payment for your injury. That is the fundamental rule of workers' compensation. An important corollary to that fundamental rule is that the accident does not have to be the sole cause of a workers' pain or limitations in order to be compensable. If a worker has a preexisting condition that is aggravated or exacerbated by an on the job injury by accident, the injury can be compensable. An injury by accident at work is compensable even if it is merely a contributing cause. Roman v. Southland Transp. Co., 350 N.C. 549, 515 S.E. 2d 214 (1999). "All natural consequences that result from a work-related injury are compensable under the Workers' Compensation Act." Roper v. J.P. Stevens & Co., 65 N.C.App. 69, 73-74 308 S.E.2d 485, 488 (1983). "When a preexisting non-disabling non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment ... so that disability results, then the employer must compensate the employee for the entire resulting disability." Cannon v. Goodyear Tire & Rubber Co., 171 N.C.App. 254, 262, 614 S.E.2d 440, 445 (2005)(quoting, Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E.2d 458, 470 (1981)). That means that the Plaintiff (injured worker) need not prove that the on the job injury is the only reason that they are having pain or problems. It is sufficient to prove that the injury caused an aggravation or exacerbation of a pre-existing condition. A recent case in our office demonstrates the importance of this rule. Our client suffered from congenital narrowing of the cervical spine, which means that the nerve column in his neck was narrower than the average person since birth. He suffered an injury by accident at work when he hit his head. His orthopaedic doctor testified that he more likely than not aggravated his preexisting neck condition when he hit his head at work. He ended up requiring surgery, and could no longer perform they type of work. Importantly, he had never suffered any pain or injury to his neck prior to the injury at work. His preexisting neck condition was asymptomatic or causing him NO PAIN or LIMITATION until the accident. Even though our client in the above example had a preexisting condition, the congenital narrowing of his cervical spinal column, his injury by accident at work aggravated it, causing substantial damages. Because of the rule that "all natural consequences" of a work-related injury are compensable, our client is entitled to damages. If he can prove that the accident is compensable, then the cost of medical care, as well as weekly workers' compensation payments, should be borne by his company (or their insurer) because he can no longer perform the same level of physical work. If you or a loved one suffered from an on the job injury, give us a call 800 - 755 - 1987.

On behalf of O'Malley Tunstall PLLC posted in Civil Trial on Thursday, May 23, 2013.

There is a provision in the NC Senate budget bill changing the salary continuation statute for injured state law enforcement officers that could reduce their benefits upon an injury to less than that of all other injured workers in North Carolina. Please read the below and contact your State Senator to protect our vulnerable law enforcement officers. Link to Senate Bill 402 Injured Law Enforcement officers currently are eligible to receive up to 2 years of full salary following an injury or occupational disease in lieu of the reduced wage loss benefit payable under the Workers' Compensation Act, GS 97-29 (temporary total disability) or G.S. 97-30 (temporary partial disability). (See G.S. 143-166.13 et seq.) The current legal standard is that the officer can get this salary continuance if he is incapacitated from work ("disabled") due to an "injury by accident or an occupational disease arising out of and in the course of the performance by him of his official duties." If the officer's incapacity to work continues beyond two years, he then gets benefits paid under the Workers' Compensation Act which is paid at the lesser rate of 66% of his average weekly wage. (G.S. 143-166.14 as it presently exists). Proposed amendments in this Senate budget bill change the current "injury by accident" or "occupational disease" requirement for benefits to only those injuries by accident or occupational illnesses caused by "extreme activity." Under the Workers' Compensation Act, compensation is paid to all injured workers, not just law enforcement, due to disability caused by an "injury by accident" or "occupational disease" that occurs in the course and scope of one's work. There is no "extreme activity" required for workers who are not law enforcement officers. This new Bill does not appear to provide benefits for those officers who are injured by accident or have contracted an occupational disease, but who haven't been injured by extreme activity. All other workers in NC would be able to get G.S. 97-29 (Temporary total disability) or G.S. 97-30 (temporary partial disability) benefits during the first 2 years of disability after an on-the-job injury, but this Bill seems to prohibit LAW ENFORCEMENT Officers from those benefits --- reducing our most vulnerable and helpful of public servants basic rights. Put another way, under the Senate Bill, injured LAW ENFORCEMENT Officers are "opted out" of the Workers' Comp Act for the first two years, but not "opted in" if their on-the-job injury is not caused by "extreme activity." What is "extreme activity?" No one knows. It is not defined in this change to the law. If you are sitting in your cruiser at a red light and get rear ended by a motorist who is not paying attention, and end up with neck surgery, was that injury caused by "extreme activity?" If you are chasing a suspect through a yard at night and you trip over a tree root and fall, and end up needing knee surgery, was that an "extreme activity?" So the definition will have to be litigated over the next decade or so as officers get injured and are denied their salary continuance or workers' comp benefits. So, the question arises---will any wage loss benefits be payable to law enforcement officers who are merely "injured by accident" or by an "occupational disease" not related to "extreme activity" during the first two years of their disability or will our law enforcement officers have less rights than that of ordinary citizens in North Carolina. Here is the relevant portion: "§ 143-166.14. Payment of salary notwithstanding incapacity; Workers' Compensation 27 Act applicable after two years; duration of payment. 28 The salary of any of the above listed persons eligible person shall be paid as long as his the 29 person's employment in that position continues, notwithstanding his the person's total or partial 30 incapacity to perform any duties to which he the person may be lawfully assigned, if that 31 incapacity is the result of an injury by accident or an occupational disease arising out of and in 32 the course of the performance by him of his or injuries due to extreme activity which occurred 33 in the course and scope of the eligible person's official duties, except if that incapacity 34 continues for more than two years from its inception, the person shall, during the further 35 continuance of that incapacity, be subject to the provisions of Chapter 97 of the General 36 Statutes pertaining to workers' compensation. Salary paid to a an eligible person pursuant to 37 this Article shall cease upon the resumption of his the person's regularly assigned duties, 38 retirement, resignation, or death, whichever first occurs, except that temporary return to duty 39 shall not prohibit payment of salary for a subsequent period of incapacity which can be shown 40 to be directly related to the original injury.41 " § 143-166.15. Application of § 97-27; how payments made. 42 Notwithstanding the provisions of G.S. 143-166.14 of this Article, the persons entitled to 43 benefits shall be subject to the provisions of G.S. 97-27 during the two-year period of payment 44 of full salary. All payments of salary shall be made at the same time and in the same manner as 45 other salaries are paid to other persons in the same department. 46 " § 143-166.16. Effect on workers' compensation and other benefits; application of § 47 97-24. 48 The provisions of G.S. 143-166.14 shall be in lieu of all compensation provided for the first 49 two years of incapacity by G.S. 97-29 and 97-30, but shall be in addition to any other benefits 50 or compensation to which such person shall be entitled under the provisions of the Workers' 51 General Assembly Of North Carolina Session 2013 S402 [Edition 2] Page 395 Compensation Act. The provisions of G.S. 97-24 will commence at the end of the two-year 1 period for which salary is paid pursuant to G.S. 143-166.14. 2 " § 143-166.17. Period of incapacity not charged against sick leave or other leave. 3 The period for which the salary of any person is paid pursuant to G.S. 143-166.14 while he 4 the person is incapacitated as a result of an injury by accident or an occupational disease arising 5 out of and in the course of the performance by him of his or injuries due to extreme activity 6 which occurred in the course and scope of the eligible person's official duties, shall not be 7 charged against any sick or other leave to which he the person shall be entitled under any other 8 provision of law. 9 " § 143-166.18. Report of incapacity. 10 Any person designated in G.S. 143-166.13, who, as a result of an injury by accident arising 11 out of and in the course of the performance by him of his or injuries due to extreme activity 12 which occurred in the course and scope of the eligible person's official duties, is totally or 13 partially incapacitated to perform any duties to which he the person may be lawfully assigned, 14 shall report the incapacity as soon as practicable in the manner required by the secretary or 15 other head of the department to which the agency is assigned by statute. 16 " § 143-166.19. Determination of cause and extent of incapacity; hearing before Industrial 17 Commission; appeal; effect of refusal to perform duties. 18 Upon the filing of the report, the secretary or other head of the department or, in the case of 19 the General Assembly, the Legislative Services Officer, shall determine the cause of the 20 incapacity and to what extent the claimant may be assigned to other than his the claimant's 21 normal duties. The finding of the secretary or other head of the department shall determine the 22 right of the claimant to benefits under this Article. Notice of the finding shall be filed with the 23 North Carolina Industrial Commission. Unless the claimant, within 30 days after he receives 24 notice, files with the North Carolina Industrial Commission, upon the form it shall require, a 25 request for a hearing, the finding of the secretary or other department head shall be final. The 26 finding of the secretary or other department head shall be final unless the claimant, within 30 27 days of receipt of the notice, files a request for a hearing with the North Carolina Industrial 28 Commission using a form required by the Commission. Upon the filing of a request, the North 29 Carolina Industrial Commission shall proceed to hear the matter in accordance with its 30 regularly established procedure for hearing claims filed under the Worker's Compensation Act, 31 and shall report its findings to the secretary or other head of the department. From the decision 32 of the North Carolina Industrial Commission, an appeal shall lie as in other matters heard and 33 determined by the Commission. Any person who refuses to perform any duties to which he the 34 person may be properly assigned as a result of the finding of the secretary, other head of the 35 department or of the North Carolina Industrial Commission shall be entitled to no benefits 36 pursuant to this Article as long as the refusal continues. 37 " § 143-166.20. Subrogation. 38 The same rights and remedies set forth in G.S. 97-10.2 shall apply in all third party liability 39 cases occurring under this Article, including cases involving the right of the affected State 40 agency to recover the salary paid to an injured officer during his the officer's period of 41 disability." 42 SECTION 35.16.(b) This section becomes effective October 1, 2013, and applies 43 to incapacity commencing on or after that date. 44 45 SEPARATE INSURANCE BENEFITS PLAN ASSETS/PAYMENT OF HEALTH 46 INSURANCE PREMIUMS FOR LAW ENFORCEMENT OFFICERS 47 SECTION 35.17.(a) G.S. 143-166.60 is amended by adding a new subsection to 48 read: 49 "(d1) In addition to the benefits provided under subsection (d) of this section, the assets of 50 the Plan

On behalf of O'Malley Tunstall PLLC posted in Auto Accident Law on Tuesday, March 12, 2013.

Car crash while working? You must pay Workers' Compensation back. One of the main reasons to hire an attorney familiar with both workers' compensation and personal injury (automobile accident and injury claims) is that you have options at the end of your claim as to what you must repay to workers' compensation out of your injury verdict or settlement. Personal injury, workers\' compensation attorney -- Joe Tunstall N.C. Gen. Stat. Ann. § 97-10.2 (j) states "Notwithstanding any other subsection in this section, in the event that a judgment is obtained by the employee in an action against a third party, or in the event that a settlement has been agreed upon by the employee and the third party, either party may apply to the resident superior court judge of the county in which the cause of action arose or where the injured employee resides, or to a presiding judge of either district, to determine the subrogation amount." N.C. Gen. Stat. Ann. § 97-10.2 (West) Therefore, your attorney may find it appropriate to file a motion with the court asking the judge to set the amount of the recovery rather than merely repay the lien. In the Leggett case, Joe Tunstall, filed a motion arguing why workers' compensation should recover none of the money from a client's serious injury. The Court of Appeals agreed with the trial judge in allowing no recovery for the workers' compensation insurance company. "N.C. Gen.Stat. § 97-10.2(j) grants the superior court discretion to determine the amount of the employer's lien when a settlement is reached between the injured employee and the third party tortfeasor. See id. The trial court may reduce or completely eliminate a workers' compensation lien if warranted by the facts, and this Court may not interfere absent an abuse of discretion." Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 100, 678 S.E.2d 757, 761 (2009). The Court of Appeals held that one reason for upholding the elimination of the lien was "Plaintiff's evidence at the hearing included Plaintiff's testimony and eleven marked exhibits, including Plaintiff's medical records." Leggett v. AAA Cooper Transp., Inc., 198 N.C. App. 96, 101, 678 S.E.2d 757, 761 (2009) N.C. Gen. Stat. Ann. § 97-10.2(j) further states "The judge shall consider the anticipated amount of prospective compensation the employer or workers' compensation carrier is likely to pay to the employee in the future, the net recovery to plaintiff, the likelihood of the plaintiff prevailing at trial or on appeal, the need for finality in the litigation, and any other factors the court deems just and reasonable, in determining the appropriate amount of the employer's lien." N.C. Gen. Stat. Ann. § 97-10.2 (West). It is clearly not appropriate to file a 10.2(j) motion in every case with workers' compensation and liability proceeds. The ability to know when to file the motion and when not to file the motion is why you pay an experienced attorney who handles these claims on a daily basis. If you have any questions regarding personal injury, automobile injury cases or how they affect your workers' compensation claim; feel free to contact our office.

On behalf of O'Malley Tunstall PLLC posted in Auto Accident Law on Thursday, December 20, 2012.

Learning to do a cross examination is like learning to do anything else; you must practice, make mistakes and then learn from those mistakes to correct and hone your craft. If you ask a practicing trial lawyer, most will agree that learning to do a good direct examination that appears like a conversation, elicits the necessary information and does not result in constant objections is more difficult to master than a laser cross examination, however, even when you muddle through a direct, rarely can you do significant harm to your case like a poor cross examination. Below find the rules I keep posted in my trial cheat notebook. 1. Laser focus your cross examination. 2. Lead the witness, cross examination is not a direct examination. 3. Always complete your question with a yes or no answer only. 4. Follow your own order. 5. Start with eliciting helpful information for your case. 6. Don't overreach. Cross Examination is not a direct examination where you attempt to obtain information by asking open ended questions that allows a witness to answer in sentence or paragraph form. A good cross examination is a laser focused examination of what a witness has already testified to that allows you to question, exacerbate or challenge already given testimony. The work mistake I have seen over the years by adverse counsel in their cross examinations of my clients involve forgetting the point of cross examination and turning their examination into a deposition of my client. Cross examination is not the time to learn information nor is it a time to obtain information about my client that you did not already know. The old adage "Never ask a question at trial you don't know the answer to" is imperative when you are attempting to question a hostile witness. If you ask an open ended question whereby you are attempting to elicit information, you give that person an opportunity to spin and frame their answer in such a way that negatively impacts upon your case, i.e. you are no longer doing your job. Cross examination, when done correctly, does not have to go on forever. In fact, if you look at the rules I use for my own cross examination, you will see I attempt to remind myself at every stage not to over embellish my cross examination. I have seen an expert derailed in a few short questions and seen trials turn with a one sentence cross. The second biggest mistake I have seen in cross examinations is to forget how to frame your questions. If you are representing someone in a courtroom than you have some advance notice of the facts of your case. The only real exceptions to this rule are prosecutors in criminal district court who have the unenviable task of framing their cross examination while an officer whispers the true facts of the case in their ear. That exception aside, we are paid to prepare our cases in advance of the hearing or trial. For cross examination that involves becoming familiar with all the facts of the case, pouring over each witnesses testimony or potential testimony if not prior deposition was given and then framing every question for that witnesses in such a way that they; a. give positive information that helps our case first, b. that we shape our other questions in such a way they can only give a yes or no answer, but the question itself suggests the answer or facts. For adverse witnesses you must lead them in the direction of the answer you want them to reach by the way you ask the question. You may interject your own beliefs, thoughts and especially interpretations of the facts as you ask your questions. You must always keep in mind your audience. In front of a judge in a bench trial I have a lot more latitude with cross but I don't need to exhaust a subject or emphasize a point the way I like to do with a jury. Often in a short cross examination I may pause after asking an important question for upwards of fifteen or twenty seconds while I look at either the witness or the jury. Fifteen or twenty seconds can seem an eternity, but not long enough to get a judge to make you move on. In an automobile collision case where a young twenty-two or three year old witness was testifying that his mother had the green light my cross was two questions. First, Mr. Taylor isn't it true that you were sitting in the backseat immediately behind the passenger seat as you approached the intersection. Second, I'm sorry you broke your arm from the impact of this collision; I'm assuming a good young man like you would never have made a claim against your own mother, you didn't did you. In that case I really never cared what Mr. Taylor had said about the light being green or red. He was in the backseat and I found it a little ridiculous the defense lawyer was allowing him to testify at all. There were several other witnesses that had already testified my client had the green light. The issue for that case was that there had not been enough impact to cause my client's back injuries. In fact, the pictures of the damage to my client's vehicle were less than impressive. Therefore, I simply wanted to use his testimony to bolster my client's claim that it was a significant impact despite the low visible damage between the vehicles. Getting in that he broke his arm without even having that the main focus of the question was a bonus. Second, in a very anti-lawsuit county, I wanted the jury to understand the son had made a claim for his own damages which had been paid by his own mother's insurance company. This was a gift from the other attorney to put this young man on the stand; I had to take advantage of it without looking like a jerk. Always make sure your questions on cross end with only a yes or no answer. It does you no good to frame your question in such a way that helps you only to leave the door open for a witness to be able to explain away the answer. Yes, a very well prepared witness can always answer with, yes or no and then explain, but rarely does that help them and instead it appears they are trying to talk their way out of the answer rather than giving a good answer. The old lawyer saying is three hours of preparation for every hour of trial is never as true as in cross examination. Spend your cross examination time drafting numerous statements you want the adverse witnesses to say and then turn them into questions. Isn't it true that... is an easy way to ask just about anything. Then don't forget to narrow down your list of questions into a few narrow but powerful statements. Cross is still a laser being used as a paintbrush. You're cutting away the previous testimony to get to the heart of your issue with the witness and leaving a visual image in the jurors' minds. The visual image you want the jury to remember about a witness often does not follow in the same order as direct. You should never start by apologizing to the jury or the witnesses for skipping around, just do it. If you follow the same order as the direct examination you make it easy for the jury but you don't paint the visual image you wanted to paint, instead your helping to paint the other sides visual. Start by eliciting anything helpful. Why, well if I attack you first are you more likely or unlikely to help me? You also should never forget the idea of primacy and recency. I like to start cross by pulling out any fact that could help support my client's version of events and finish with the most helpful negative statements about the witness. This is not set in stone. If the witness has made big points you may need to take those points, those swords used against your client and break them over your knee one at a time without regard for pulling any positive information from the witness, or finishing with an obvious point the witness must agree with that makes their previous point look ridiculous. Don't forget, cross examination is your friend, use it as a tool. You pick the order of questions that best helps your client's position. It is also okay to jump back and forth between two or more unrelated points if you can get concessions or admissions from the witnesses on those points. Learning when to stop a cross examination and when to just not cross examine a witness at all is all about experience. If there is nothing you can gain, no positive point to make or concession your sure to draw out, sometimes it is better not to ask anything. In a civil case often the defense not asking any questions of a lay witness is more powerful than asking if they are friends and if the witness will do anything for their friend. Those questions just aren't helpful as the jury can put themselves in the position of the person testifying for a friend and would be annoyed by the implication the witnesses would lie for a friend. This does not mean you simply don't cross a tough witness. Often young attorneys will not cross a witness if they are unsure how to handle the witnesses and it appears to the jury that the attorney is admitting or consciously agreeing with the testimony. Even if you ask one question and make a point, even a little point, it makes since to ask that question if the witnesses hurt you. Less is often more in cross examination. Don't overreach and try to make the knockout blow in one sentence. The witnesses may not agree that it was a hard impact that could have injured someone, but they may agree with you that several people complained of pain at the scene, that the vehicle was pushed sideways by the impact, that the suddenness of the impact scared them, and that the plaintiff was very nice at the scene. Cross examination can also be the death of a thousand small cuts. I have seen good attorneys cut apart a witness and never go head to head with them. Instead they took individual statements they have made and by getting the witnesses to agree to these statements, that on a whole make them look ridiculous, accomplish more than they could have by attacking them directly. After conducting hundreds of cross examinations in trials and hearings, one resource still stands out; The Art of Cross-Examination by Francis L. Wellman. This book sets out the true art that is involved in examine a witness. I believe this book is now on the fourth edition and it gives a look into the human mind and the way humans interact that explains why attacking someone head on is so difficult. I cannot recommend this book enough. After reading the original book, recommended by my senior partner when I first began practicing law, the idea of attacking a witness through small, organized statements that they must agree with without taking the witnesses statements head on first began to make sense. I have always kept the information learned in this book in the back of my mind as I prepared for more and more cross examinations. One example in the book discusses multiple witnesses to the same incident each having slightly different perspective and thus each remembering the incident differently. You cannot change what someone believes they saw, but you can certainly get them to agree to enough facts so that the jury understands how those similar facts make your client's version of events more credible. The book also talks about the honest vs. dishonest witness. It is almost impossible to truly cross examine the dishonest witness as they will not agree with the facts that are obvious and will continue to push their viewpoint rather than the truth. Remember cross examination should not be about taking a sledge hammer to concrete, but instead like using a laser to cut a distinct line through marble.

On behalf of O'Malley Tunstall PLLC posted in Legally Speaking on Sunday, December 2, 2012.

The Court of Appeals recently dealt with the issue of an injury to an employee while on an employer mandated lunch break in the case of Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). The Court agreed with the Industrial Commission and found that there is a causal relationship between plaintiff's employment and her injury because she incurred her injury based on a condition in her workplace. "Plaintiff was injured in a common area of the building, and the record indicates that employees were not only authorized but also encouraged to go to the first floor since Eurst, the cafeteria for employees, was located there, and employees had authorization to walk through the hallways on the first floor. Thus, we affirm the Full Commission's conclusion that plaintiff's injury "arose out of" her employment." Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). Defendants argued: (1) plaintiff's injury did not occur at a time reasonably related to her employment since she was on an unpaid lunch break; (2) defendant-employer did not control or own the building where defendant was injured; and (3) plaintiff was not engaged in activities related to her employment. The Court of Appeals disagreed for the reasons below. "With regard to determining whether an injury occurs "in the course of" employment, this Court has concluded that The words [i]n the course of have reference to the time, place and circumstances under which the accident occurred. Clearly, a conclusion that the injury occurred in the course of employment is required where there is evidence that it occurred during the hours of employment and at the place of employment while the claimant was actually in the performance of the duties of the employment. Harless, 1 N.C.App. at 455-56, 162 S.E.2d at 52. With regard to the time element, "the course of employment begins a reasonable time before actual work begins and continues for a reasonable time after work ends and includes intervals during the work day for rest and refreshment." Id. at 456, 162 S.E.2d at 53 (emphasis added). Defendants allege that this element is not met because plaintiff was on an unpaid lunch break. The Full Commission determined that plaintiff's injury occurred during a time in her work day "built in for the employees' rest and refreshment." Moreover, the Full Commission noted that defendant-employer requires its employees to take an hour-long lunch break. While defendants focus on the fact that plaintiff was injured during an unpaid break to support their argument that the injury did not occur at a time reasonably related to her employment, we have no support in our caselaw for the proposition that the element of time is not established if an employee is on an unpaid break. Here, plaintiff's injury occurred during the hours of employment, even though it happened during an unpaid break. Thus, the Full Commission's conclusion accurately reflects that "in the course of" includes times during the workday for rest and refreshment. See Harless, 1 N.C.App. at 456, 162 S.E.2d at 53. Therefore, we affirm the Full Commission's conclusion of law with regard to the element of time. With regard to the element of place, defendants contend that the Full Commission's conclusion of law no. 5 was erroneous. Moreover, defendants allege that findings of fact nos. 4-8, to the extent they infer defendant-employer maintained or controlled the building, were not supported by competent evidence. Place is considered the "premises of the employer." Harless, 1 N.C.App. at 456, 162 S.E.2d at 52. While the Full Commission noted in its findings that defendant-employer no longer owned the building where plaintiff worked, it indicated that "[d]efendant[e] mployer continued to be the main tenant in the building and maintained and controlled all activities occurring in the building." These findings were supported by competent evidence in the record that established all other contractors in the building, including the cleaning contractors, mail room, security, and Eurst, provided services to defendant-employer. Moreover, the only other business, Strayer University, offered services exclusively to employees of defendant-employer. Based on these findings, the Full Commission concluded that because "an accident may be compensable if it occurs on the premises of the employer or adjacent premises that are owned or controlled by the employer[,]" the element of place was met because defendant-employer "still essentially controlled the building, including the common area in which [p]laintiff fell." In support of its conclusion, the Full Commission cited Strickland v. King, 293 N.C. 731, 239 S.E.2d 243 (1977), and Bass v. Mecklenburg County, 258 N.C. 226, 128 S.E.2d 570 (1962). In Bass, our Supreme Court noted that "injuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are generally deemed to have arisen out of and in the course of the employment ... provided the employee's act involves no unreasonable delay." 258 N.C. at 232, 128 S.E.2d at 574. Here, there was competent evidence that plaintiff was injured on premises essentially controlled by defendant-employer while she was returning to her cubicle from the first floor of the building during her lunch break. Thus, the conclusion that the element of place was met is justified, and defendants' argument is without merit. See, Mintz v. Verizon Wireless, COA12-306, 2012 WL 5846239 (N.C. Ct. App. Nov. 20, 2012). Thus the Court of Appeals confirmed that Plaintiff was within the Course AND Scope of her employment at the time of her injury. Visit our website for more information on North Carolina workers' compensation.

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